Wednesday, January 16, 2013

Human rights law, in South Africa and Israel

Why has Israeli public interest law not succeeded in contributing to the end of Israel's occupation of the West Bank?

One possibility is that the strategy by which the lawyers shaped their work was mistaken. Daphna Golan and Zvika Orr, two Israeli scholars with deep roots in public interest advocacy themselves, have recently suggested this in an incisive and dismaying article,  "Translating Human Rights of the 'Enemy': The Case of Israeli NGOs Defending Palestinian Rights," 46 Law & Society Review 781 (2012). Golan and Orr write that:

Depoliticization of the work of Israeli NGOs has proved ineffective, not merely in terms of the ongoing and increasing human rights abuses in the Occupied Territories, but also in terms of the way in which the NGOs are commonly perceived by the Israeli public, legislators and government. (809)

They conclude:

[W]e propose that contemporary attempts to silence the translators of human rights violations [that is, public interest advocates] should signal to activists the need to reconsider some of their current depoliticized strategies and to think of new ways to broaden the understanding of their role in leading a process of fundamental change, which not only will ensure that the occupation complies with international law but will end the military occupation of Palestinian territories. (810)

Given how far Israeli politics have moved away from a commitment to finding a negotiated solution to the problem of the Occupation, it is entirely understandable that"activists' general feeling ... is one of despair and powerlessness to bring about a fundamental and deep change." (808) But I'm not sure that the reason for this state of affairs is that the public interest activists made strategic mistakes, or indeed that they made strategic mistakes at all.

To take the last point first: sometimes the good guys don't win. The forces driving Israeli and Palestinian politics away from negotiation and perhaps to endless confrontation and injustice are deep and powerful. Terror, anger and growing religious fundamentalism may simply be too much for any strategy to overcome. If the advocates of a different course have not succeeded, that may not show that they made any mistakes. Legally speaking, meanwhile, it seems to me that Israeli advocates have actually done rather well – not ending the Occupation, of course, nor ridding it of injustice, but winning judgments in a number of important cases that imposed some genuine constraints on the Israeli government.

I'm also not sure that pursuing a depoliticized strategy was a mistake. I must emphasize that I don't say this based on an understanding of Israel, of which I'm just a concerned observer. But I was struck by Golan and Orr's explanation of the difference between the impact of anti-apartheid lawyering in South Africa and the results of public interest efforts in Israel. They write that "law played a central role in the struggle against apartheid. Yet in South Africa the struggle for legality and basic civil rights was inseparable from the overall political struggle." (796)

It is certainly true that legal efforts against apartheid were part of a much broader social and political movement. But that alone may only remind us that in South Africa the movement against apartheid grew stronger and the government's resistance lost conviction. The larger politics broke against apartheid; within Israel, politics have not broken against the Occupation. Without a strong political movement to link with, activists' options are limited.

It's also not quite right to say that the legal efforts in South Africa were "inseparable" from the political struggle. In one sense, certainly, this statement is correct: the lawyers advocating for human rights were seeking goals that the movement broadly shared. But in that sense I think Israeli activists are also aligned with the political struggle against the occupation.

In another sense, however, many South African anti-apartheid lawyers did their work in ways that were distinct from the political struggle. The most important public interest law organization of the day was the Legal Resources Centre (LRC), which was co-founded and led by Arthur Chaskalson. (I wrote in this blog, with sorrow, about my friend Arthur’s death last fall.) Arthur, an absolutely determined foe of apartheid, nevertheless shaped the LRC as an organization expressing the highest traditions of the bar – legalist traditions rather than explicitly political ones. LRC lawyers, and I think anti-apartheid lawyers in general, challenged apartheid in its own courts by making the arguments that the South African legal system permitted. It was, I think, in good part their ability to present themselves as acting within the bounds of the system that contributed to their legal successes.

I wonder if Israeli human rights lawyers have been the victims not of strategic mistakes but of too much success. In South Africa, as apartheid ground on through the 1980s, no one thought the courts were an institutional force opposed to the government; what was remarkable was that occasional liberal judges, and even occasional conservative judges, ruled against the government. The victories may have meant more because they were more grudgingly yielded by the judicial system. As a result, one can speculate – though only that – that supporters of apartheid may have found these victories more unsettling than Israelis committed to the Occupation do. One can also speculate that the legal system in South Africa was so plainly unsympathetic to the anti-apartheid cause that no one really needed to argue about whether the lawyers fighting against apartheid in the courts were or were not fundamentally aligned with the political struggle.

Israeli activist lawyers, in contrast, have had the good fortune – and perhaps the mixed blessing – of appearing in courts committed to binding Israel to the rule of law. Perhaps the result has been to make the rule of law appear more politically charged than it did in South Africa, and perhaps the result is that when political winds turned against Palestinians those same winds began to blow at the edifice of law. Perhaps conservative Israelis now find it easy to write off the zone of legalist rights-consciousness as simply a political project. (David Remnick writes in “Letter from Jerusalem: The Party Faithful,” in this week’s New Yorker (Jan. 21, 2013), at 42, that Israel’s “[r]ight-wing politicians have long railed against what they see as the dominance of leftist élites in the media, academic, human-rights organization, and, especially, the Supreme Court – the nemesis of the far right – but they do so now from an unassailable position of power.”) And yet it would have been very hard indeed for lawyers to resist the courts’ receptivity to their arguments.

For all these reasons I’m not convinced that Israel’s public interest advocates have made mistakes. It might still be the case that the right move for lawyers now is to become more overtly political. "Politicization" exists on a spectrum, and some shift by Israeli lawyers may prove fruitful. I'd only say that shifting too far may be a mistake; the moral resources of the rule of law are powerful levers, not lightly to be put down. But I certainly don’t know what the best course now is, and I don’t at all envy the Israeli scholars and lawyers who after years of dedicated and difficult effort must wrestle with the question of how to challenge an occupation that has not ended but grown more entrenched over the 45 years it has been in place.  

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